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Philippe Sands: Obama Must Investigate Torture

Philippe Sands’s influential article “The Green Light” was the first major investigation into the role of Bush administration lawyers in promoting and justifying the widespread use of torture. A fuller account was published by Sands a month later in his book Torture Team. The book, published by Palgrave Macmillan, has just appeared in paperback, and I caught up with Sands to ask him about developments during the past year.

Cullen Murphy: “The Green Light” received a great deal of attention the moment it was published, especially on Capitol Hill, and you eventually testified before both houses of Congress. Can you describe the reaction to your article?

Philippe Sands:The article appeared last year on April 2. Within a few days the Chairman of the House Judiciary Committee, Congressman John Conyers, announced a series of hearings on the role of senior Administration lawyers (“The Bush Six”) in promoting abuse of detainees. The first hearings came the following month, in May, at which I testified. That was followed by further hearings before House Judiciary and Senate Armed Services and Senate Judiciary, by subpoenas and new documents. By January of this year, the account in The Green Light was largely established, not least by the then far-reaching report of the Senator Armed Services Committee and high-level confirmation that Mohammed Al-Qahtani was tortured.Then we move almost seamlessly to President Obama’s executive order ensuring lawful interrogations and his decision last month to leave the door open to criminal investigations of the Bush Six, against the background of a far-reaching criminal inquiry in Spain. It’s always difficult to show cause and effect, but it seems hard to imagine that the Vanity Fair article didn’t have a powerful influence in causing the body politic to focus on the lawyers. But for these lawyers, none of this would have happened. Their place in the spotlight is well deserved.

At one point, as I recall, you and Douglas Feith—who came in for considerable criticism in The Green Light—were called to testify at the same Congressional hearing. What happened when the two of you met—and when the two of you testified?

Feith has launched a number of attacks on my writing, more entertaining than withering, I would say. They aren’t unhelpful to book sales, and every time he speaks he seems to dig himself in a little deeper. When I first met him he told me he had nothing to do with the decisions on interrogation techniques at Guantánamo. The documents and new developments say otherwise. I stand by everything I wrote about Feith.

In July 2008, we appeared together before the House Judiciary Committee. I came voluntarily, he was subpoenaed. He went on a bit of a rampage, which may not be the most effective of strategies. His efforts to explain the difference between “removal of clothing” and “nudity” were more Monty Python than senior statesman.

Toward the end of your article you described meeting a European judge—he is presented anonymously—and asking him if the U.S. government lawyers responsible for opening the door to torture might have anything to fear from courts outside the United States. The judge believed they very well might. In recent months we’ve seen a Spanish judge take significant actions—perhaps a bellwether for other developments to come. Can you briefly tell us where matters stand in the international arena? And are you surprised at how quickly events have unfolded?

Criminal investigations are currently under way in Britain and in Spain. The British investigation concerns allegations of complicity on the part of the British intelligence services in the treatment of Binyam Mohammed. The Spanish investigations are two-pronged, both apparently catalyzed by my book and the Vanity Fair article: Judge Velasco is looking at a potential criminal investigation of the Bush Six, while Judge Baltasar Garzon is looking at an even more far-ranging inquiry into the Bush Six and unnamed others. It is early days, but I understand that letters rogatory are being sent to the Department of Justice, asking for information on what investigations the U.S. has conducted or will conduct. Watch this space.

Americans understandably have been preoccupied with the torture issue insofar as it involves American institutions and American officials, but there has also been considerable fallout in Britain. What are the chief questions that the British government must answer?

The British government, along with a number of other governments, faces claims of complicity in torture, and a criminal investigation is currently under way. It is striking that the British authorities have taken steps to meet their obligations under the 1984 Torture Convention by submitting the matters to its competent authorities. Despite the strong evidence of torture, the Obama Administration has, thus far at least, declined to meet its obligations under the 1984 Convention. The longer this goes on the more difficult it will be to sustain the claim that the U.S. has reconnected to its commitment to the rule of law, and the more difficult it will be for the Administration to lecture other States on violations of human rights laws. The catalytic events may well be the questions posed to the Department of Justice by the Spanish judges’ investigation of the Bush Six. The Administration will have to get off the fence and say whether or not it will investigate. A failure to investigate inevitably means investigations outside the U.S., and they won’t be limited to the Bush Six.

The Obama administration has yet to decide how it will proceed—if it proceeds at all—in investigating the use of torture during the Bush administration and in holding officials to account. What do you believe would be the best course of action?

There will have to be an investigation, and I have no doubt that eventually there will be an investigation. History shows that a country cannot just “move on” when matters of such gravity have occurred.

It is first and foremost necessary for the U.S. to get its own house in order, and I am certain that if it acts to do so, other countries and their judges will back off. There are various options: congressional inquiries, an independent commission, or a criminal investigation. Some way needs to be found to take the politics out of the issue, to the extent possible, and that suggests keeping Congress out of the process. I favor an independent commission, to get the facts out, whilst leaving the door open to criminal investigations.

President Obama is sending mixed signals; he is going to have to get off the fence at some point, the sooner the better. The issues are festering, they won’t go away, and if he isn’t careful this will end up dogging his entire first term. He risks going down the “do nothing” route, which would be the worst of all scenarios. He can’t please everyone, and on this issue if he triangulates in a Clintonesque way he will please no one and end up in even greater difficulty. He has taken some brave early decisions, and he should follow through on them. His task is not made any easier by the unhappy efforts of former Vice President Cheney—a self-admitted proponent of torture—to spread poison.